2 executions in Georgia temporarily halted

By KATE BRUMBACK Associated Press

Posted:
02/20/2013 04:56:23 PM PST

Updated:
02/20/2013 04:56:23 PM PST

ATLANTA—A federal appeals court gave a Georgia death row inmate a temporary last-minute reprieve because doctors changed their minds and now believe he's mentally disabled, but his legal battle to avoid lethal injection could be an uphill climb.

The 11th U.S. Circuit Court of Appeals on Tuesday issued a stay less than an hour before Warren Lee Hill was set to die. In a 2-1 decision, the judges said more review of the doctors' statements was needed. Still, Hill faces strict requirements to get his case reconsidered.

"If this were easy, it would have been picked off months ago and not at 6:30 (Tuesday) night," said Richard Dieter, executive director of the Death Penalty Information Center. "The fact that it was so late, I think, means that it's going to be a hard fight. But the 11th Circuit said at least there's some way that he could still prevail."

Hill was one of two Georgia inmates scheduled to die this week. The planned Thursday execution of Andrew Cook was also halted.

Lawyers for both Cook and Hill argued in filings before the Georgia Court of Appeals that the state would violate the law by using pentobarbital in executions without a prescription. The government called the claim frivolous and challenged both rulings.

Prosecutors also asked the U.S. Supreme Court to vacate the 11th Circuit's order halting Hill's execution on the mental disability claim.

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Hill was sentenced to die for the 1990 beating death of fellow inmate Joseph Handspike. Hill used a board studded with nails and bludgeoned Handspike while he slept, authorities said. At the time, Hill was already serving a life sentence for the 1986 slaying of his girlfriend, Myra Wright, who was shot 11 times.

The dissenting opinion from the 11th Circuit illustrates why the fight could be difficult for Hill.

Circuit Judge Frank Hull said Hill has already brought up his claim in federal court and can't do so again. The judge also faulted Hill's lawyers for waiting until the last minute to bring up the new evidence even though one of the doctors approached them to say he wanted to reconsider the case in July.

Georgia passed a law in 1988 prohibiting the execution of mentally disabled death row inmates, and the U.S. Supreme Court ruled in 2002 that the execution of mentally disabled offenders was unconstitutional. But Georgia also has the strictest-in-the-nation standard for death row inmates seeking to avoid execution, requiring them to prove their mental disability beyond a reasonable doubt.

Most states that impose the death penalty have a lower threshold, while some don't set standards at all.

Hill's lawyers have long claimed he's mentally disabled and therefore shouldn't be executed.

Last week they released new sworn statements from the three doctors who examined Hill in 2000 and previously testified he was not mentally disabled.

In their new statements, the doctors wrote they were rushed in their evaluation at the time, they had acquired additional experience and there had been scientific developments in the intervening 12 years. All three wrote they now believe Hill is mentally disabled.

"In other words, all of the experts—both the state's and the petitioner's—now appear to be in agreement that Hill is in fact mentally retarded," the 11th Circuit judges in the majority wrote.

The state questioned the doctors' credibility, saying they hadn't seen Hill in person since 2000. The government also cited IQ tests and argued that family members described him as "the leader of the family" and "a father figure" before his trial. He was not in special education classes and served in the Navy, where he received promotions, the state argued.

The 11th Circuit set a period of up to 30 days for the two sides to spell out their arguments.

Dieter said Hill has new evidence, but he's not contending that it proves his innocence, but rather that he's mentally disabled.

"If you can prove that you're in a class that the Supreme Court has excluded from the death penalty, it's like proving your innocence," Dieter said. "I think one thing DNA and all the innocence cases have taught us is that sometimes there just is new evidence that ought to trump procedural bars."